Attached files
file | filename |
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EX-4.1 - REGISTRATION RIGHTS AGREEMENT - Arista Power, Inc. | f8k042610ex4i_windtamer.htm |
EX-4.2 - FORM OF WARRANT TO PURCHASE COMMON STOCK - Arista Power, Inc. | f8k042610ex4ii_windtamer.htm |
EX-10.1 - LOAN AGREEMENT - Arista Power, Inc. | f8k042610ex10i_windtamer.htm |
EX-10.4 - ASSIGNMENT OF SHARES - Arista Power, Inc. | f8k042610ex10iv_windtamer.htm |
EX-10.2 - $1,000,000 REVOLVING CREDIT NOTE - Arista Power, Inc. | f8k042610ex10ii_windtamer.htm |
EX-10.3 - WARRANT PURCHASE AGREEMENT - Arista Power, Inc. | f8k042610ex10iii_windtamer.htm |
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT PURSUANT
TO
SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported) April 26,
2010
WINDTAMER CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
New York
(State or
Other Jurisdiction of Incorporation)
000-53510 | 16-1610794 | |
(Commission File Number) | (IRS Employer Identification No.) | |
156 Court Street Suite #7, Geneseo, New York | 14454 | |
(Address of Principal Executive Offices) | (Zip Code) |
(585) 243-4040
(Registrant’s
Telephone Number, Including Area Code)
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
INFORMATION
TO BE INCLUDED IN THE REPORT
Item
1.01 Entry into a Material Definitive Agreement
On April
26, 2010, WindTamer Corporation (the "Company") entered into a Loan Agreement
with First Niagara Bank, N.A. (the "Lender") providing for a $1.0 million
working capital revolving line of credit. Advances under the Loan
Agreement, which will be evidenced by a committed revolving credit note (the
"Note"), bear a variable interest at the prime rate, subject to a floor of 3.25%
per annum payable monthly. The Note matures on May 1, 2011, and all
borrowings under the Loan Agreement are due and payable on that
date.
The Loan
Agreement includes ordinary and customary covenants related to, among other
things, additional debt, further encumbrances, sales of assets, and investments
and lending.
The
borrowings under the Loan Agreement are secured by limited guarantees provided
by two of the Company's officers, William Schmitz and Molly Hedges, and one
shareholder, Michael Hughes (the "Guarantors"). As security for the
guarantees, Gerald Brock, Chairman and founder of the Company, granted the
Guarantors the right to sell his shares in the Company in the event the
Guarantors are required to pay under the guarantees. Mr. Brock
pledged his 20,000,000 shares of the Company’s common stock owned by him as
security for his obligations.
In
connection with the guarantees and pledge, on April 26, 2010, the Company issued
to Mr. Brock and the Guarantors warrants to purchase an aggregate of 29,000,000
shares of common stock of the Company at $0.25 per share pursuant to a Warrant
Purchase Agreement (the "Warrant Purchase Agreement") in consideration of the
agreement of Mr. Brock to pledge his shares, and the agreement by Mr. Hughes,
Mr. Schmitz and Ms. Hedges to enter into the guarantees in connection with the
Loan Agreement. The warrants have a term of 10 years, with a
six-month incremental vesting schedule in tranches of 25% of the shares under
each warrant from date of issuance. The transactions were exempt from
registration under Rule 506 of Regulation D under the Securities Act of 1933, as
amended, or the Securities Act. The warrants were issued in a
transaction not involving a public offering. The warrants cover
shares in the following amounts: Gerald Brock, 6,000,000 shares; William
Schmitz, 2,300,000 shares; Molly Hedges, 1,150,000 shares; and Michael Hughes,
19,550,000 shares. Each purchaser is an accredited investor as
defined under the Securities Act and Regulation D, was knowledgeable about the
Company’s operations and financial condition and had access to such information.
The transactions did not involve any form of general
solicitation. The warrants and underlying shares issued are
restricted from resale and the warrants were acquired for investment purposes
only.
The
securities sold in the above-referenced transaction have not been registered
under the Securities Act of 1933, as amended, and may not be offered or sold in
the United States absent registration or an applicable exemption from
registration requirements.
Also in
connection with the guarantees and the issuance of the warrants, on April 26,
2010, the Company entered into a Registration Rights Agreement (the
“Registration Rights Agreement”) by and among the Company, Mr. Brock, Mr.
Hughes, Mr. Schmitz and Ms. Hedges (the "Holders"), whereby the Company granted
the Holders certain registration rights with respect to certain
shares of common stock of the Company, issued or issuable to a Holder
upon exercise of their respective warrant acquired pursuant to the Warrant
Purchase Agreement (the “Registrable Securities”). Pursuant to the Registration
Rights Agreement and subject to certain conditions contained therein, the
Company shall prepare and file with the Securities and Exchange Commission a
Registration Statement on Form S-1 (or such other form of registration statement
as is then available to effect a registration for resale of the Registrable
Securities, subject to the consent of Mr. Hughes) no later than November 26,
2010 to cover the resale of no less than half of the Registrable
Securities.
Also on
April 26, 2010, Mr. Brock agreed to assign 29,050,000 shares of the Company’s
common stock owned by him to the Company for no additional consideration,
pursuant to an Assignment of Shares between Mr. Brock and the Company (the
"Assignment of Shares"). The assigned shares were canceled and returned to
authorized but unissued shares. As a result, the number of shares of common
stock outstanding were reduced from 115,457,848 to 86,407,848.
The
foregoing description of the Loan Agreement, Note, Warrant Purchase Agreement,
Registration Rights Agreement, Form of Warrant, and Assignment of Shares, and
the transactions completed in connection therewith do not purport to be complete
and are qualified in their entirety by the full text of each agreement. Copies
of the Loan Agreement, Note, Warrant Purchase Agreement, Registration Rights
Agreement, Form of Warrant, and Assignment of Shares, are attached hereto as
Exhibits 10.1, 10.2, 10.3, 4.1, 4.2 and 10.4, respectively, and are incorporated
herein by reference.
Item 2.03 Creation of Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of
a Registrant.
(a) Reference
is made to Item 1.01 of this Current Report on Form 8-K, which disclosure is
incorporated herein by reference.
Item
3.02 Unregistered Sales of Equity Securities.
As
described above under Item 1.01 of this Current Report on Form 8-K, which
disclosure is incorporated herein by reference, on April 26, 2010, the Company
issued warrants to purchase an aggregate of 29,000,000 shares of common stock of
the Company.
Item
3.03 Material Modification to Rights of Security Holders
As
described above under Item 1.01 of this Current Report on Form 8-K, which is
incorporated herein by reference, the Company entered into the Loan Agreement on
April 26, 2010. The Loan Agreement contains a covenant that restricts the
Company's ability to pay or declare any dividends or distributions on any of its
equity interests.
Item
9.01
(d) Exhibits
Exhibit Number
|
Description
|
|
4.1
|
Registration
Rights Agreement, dated as of April 26, 2010, by and among WindTamer
Corporation and the Holders named therein.
|
|
4.2
|
Form
of Warrant to Purchase Common Stock, dated April 26,
2010.
|
|
10.1
|
Loan Agreement,
dated as of April 26, 2010, by and between WindTamer Corporation and First
Niagara Bank, N.A.
|
|
10.2
|
$1,000,000
Revolving Credit Note, dated as of April 26, 2010, by and among WindTamer
Corporation and First Niagara Bank, N.A.
|
|
10.3
|
Warrant
Purchase Agreement, dated as of April 26, 2010, between WindTamer
Corporation and certain investors identified on Schedule 1
thereto.
|
|
10.4
|
Assignment
of Shares by Gerald E. Brock to WindTamer Corporation, dated as of April
26, 2010.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
WINDTAMER CORPORATION | |||
Date: April
27, 2010
|
By:
|
/s/ William A. Schmitz | |
Name: William A. Schmitz | |||
Title: Chief Executive Officer | |||
EXHIBIT
INDEX
Exhibit Number
|
Description
|
|
4.1
|
Registration
Rights Agreement, dated as of April 26, 2010, by and among WindTamer
Corporation and the Holders named therein.
|
|
4.2
|
Form
of Warrant to Purchase Common Stock, dated April 26,
2010.
|
|
10.1
|
Loan Agreement,
dated as of April 26, 2010, by and between WindTamer Corporation and First
Niagara Bank, N.A.
|
|
10.2
|
$1,000,000
Revolving Credit Note, dated as of April 26, 2010, by and among WindTamer
Corporation and First Niagara Bank, N.A.
|
|
10.3
|
Warrant
Purchase Agreement, dated as of April 26, 2010, between WindTamer
Corporation and certain investors identified on Schedule 1
thereto.
|
|
10.4
|
Assignment
of Shares by Gerald E. Brock to WindTamer Corporation, dated as of April
26, 2010.
|